By Jonathan Mann
SSRGA recently obtained affirmance of an order denying a tenant’s motion to vacate a final default judgment in an action for eviction of a commercial tenant for nonpayment of rent.
Our client leased a commercial space to the tenant. After the tenant failed to pay the rent amount owed, our client filed a complaint in county court seeking to evict the tenant from the premises. The tenant failed to timely respond, and our client obtained a clerk’s default. Our client later obtained default final judgment awarding our client immediate possession of the premises.
The tenant filed a motion to vacate and set aside the default based on a claim of excusable neglect. The tenant asserted that its counsel’s office had failed to properly calendar the time to respond to the complaint due to an alleged clerical error. The tenant also argued that our client failed to give it proper notice of the motion for clerk’s default and motion for final default judgment.
The county court held four hearings on the tenant’s motion to vacate and set aside default, and to determine rent. The court and parties struggled to determine the amount of rent that the defendant tenant should deposit in the court registry while the case was pending. Ultimately, the court ordered the tenant to deposit a sum in the court registry and also ordered a procedure where our client would provide an accounting to the defendant. The defendant would have one week to respond with a detailed accounting of its own. The parties agreed to the procedure.
Our client complied with the procedure and provided an accounting. However, the tenant responded by filing an affidavit from its corporate representative merely disputing our client’s calculation of the amount due and alleging the tenant had fully paid all rent due, rather than providing a detailed accounting as ordered. The trial court found the tenant had not complied with the procedure. The trial court denied the motion to vacate, finding the tenant had not shown a meritorious defense. The trial court directed the clerk to issue a writ of possession.
The tenant appealed to the Fourth District Court of Appeal (“Fourth DCA”). We represented the landlord in the appellate court. The tenant initially attempted to obtain a stay from the DCA pending appeal. We successfully opposed the tenant’s attempt to obtain a stay. When the appeal proceeded to the merits, the tenant argued that the trial court had abused its discretion in denying the motion to vacate by finding the tenant did not raise a meritorious defense. The tenant argued that its affidavit alleging full rent payment sufficiently established a meritorious defense, and pointed out that the trial court had found that it established excusable neglect.
In response, we argued that denial of the motion to vacate and set aside was correct because the tenant had initially failed to support its motion with sworn statements or affidavits, and its attempt to correct that defect occurred too late. We further argued that the tenant had failed to show excusable neglect where it admitted receiving our client’s complaint but failed to adequately explain the alleged calendaring error that led to its inaction. Finally, we argued the trial court was correct in finding the tenant had not established a meritorious defense where, despite four hearings, the tenant failed to comply with the court’s procedure for it to provide evidence to support its defense of payment. We argued that the tenant waived any objections to the procedure set by the trial court where it had enthusiastically agreed to the procedure but then simply failed to comply with it.
The Fourth DCA issued a per curiam affirmance, or “PCA”, affirming the judgment without elaboration. The Fourth DCA also unconditionally granted our client’s request for appellate attorney’s fees. This favorable result for our client preserves the trial court’s ruling and allows it to seek the attorney’s fees incurred in the appeal.
* Not final until disposition of timely filed motion for rehearing.
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